Disconnecting from Work Policy Deadline Approaching

Thursday June 2, 2022 was the deadline for having a written policy on Disconnecting from Work.

Let’s revisit the basic requirements:

        1. Only employers with 25 or more employees as of January 1, 2022 are required to have a written policy on disconnecting from work.
        2. The policy must be in place by June 2, 2022 and be provided to all employees within 30 days.
        3. The policy must include the date that policy was prepared and the date of any changes.
        4. All affected employers must have a policy (or multiple policies) to cover all employees in Ontario covered by the Employment Standards Act (ESA).
        5. Employers must retain a copy of every policy as required by the ESA for three years after the policy is no longer in effect. Employers must also retain records of dates when the policy is implemented and revised.

Other than that, employers have free reign as to what to include in the policy.

What should be in the policy?

As discussed, employers have wide discretion to decide what to include in the content of the policy itself. It must, however, contain language related to “disconnecting from work”, which the Ministry of Labour defines as “not engaging in work-related communications, including emails, telephone calls, video calls or sending or reviewing other messages, to be free from the performance of work”.

The Ministry of Labour Guide on Disconnecting from Work states that the obligation to have a policy does not require an employer to create a new right for employees. Employee rights under the ESA to not perform work should be established through other ESA rules (e.g. hours of work and eating periods, vacation with pay, public holidays).

Employers should keep in mind that the guide does state that if their policy creates a greater right or benefit for employees, it may be enforceable under the ESA. In contrast, if the employer’s policy does not create a greater right or benefit, then it’s not enforceable under the ESA.

The guide also provides some details on what the policy might address. It includes:

        • Employer’s expectations, if any, about of employees to read or reply to work-related emails or answer work-related phone calls after their shift is over (e.g. depending on the time the communication is sent, its subject matter or who is contacting the employee).
        • Requirements for employees turning on out-of-office notifications and/or changing their voicemail messages when they are not scheduled to work to communicate that they will not be responding until the next scheduled work day.

Ultimately, we strongly advise employers obtain legal advice about whether any provisions would create entitlements that are more restrictive than any existing legislative or contractual obligations and employer may have.

How Does the Policy Work?

To comply, this policy may be a stand-alone document or part of a comprehensive workplace policy document. Though, we strongly recommend that you make this a stand-alone document so that Ministerial audit of policy that is intertwined with other policies does not trigger inspection and review of those intertwined policies.

ESA and Collective Agreement

Employers need to be aware of the implications of Disconnecting from Work policies for employees claims to overtime pay, minimum call-in pay, breach of hours of work rules and other legal entitlements under the ESA, contract or collective agreement.  Consideration should be given to how remote access to employer communications systems outside of working hours is supervised, recorded and even restricted to ensure that employees aren’t inadvertently (or potentially intentionally) triggering entitlements to addition pay, overtime or reporting pay.  This is not to say that the Disconnecting for Work policy needs to address these issues head-on but it may mean changes in practice are required to reduce the risk of such claims.

Tips for Your Policy

        1. Do not create a new “Right to Disconnect” – i.e. the ESA doesn’t do this and neither should you.
        2. Consider different expectations for different types of communications – ex. performing work, emergency response, scheduling work, addressing absenteeism and return to work etc.)
        3. Address variable expectations for different positions – ex. relief, on-call, front-line, management etc.
        4. Recognize a variety of schedules – ex. are you a 9-5 operation or a 24-7 operation?
        5. Contemplate Critical Business Needs – ex. backfilling, medical or health related crisis, regulatory compliance and reporting obligations?
        6. Before implementing, consider implications for other policies, contractual, legislative obligations – ex. overtime, hours of work, reporting pay, minimum wage etc.
        7. Make clear that the policy does not change existing rules under contracts, collective agreement or the ESA, or change the meaning of when work is deemed to be performed.

PooranLaw will continue to monitor legal developments related to the ESA and the right to disconnect.  In the meantime, if you require legal assistance, we encourage you to reach out to your regular PooranLaw lawyer, or any member of our team.

Note: This article provides general information only and does not constitute, and should not be relied upon as, legal advice or opinion. PooranLaw Professional Corporation holds the copyright to this article and the article and its contents may not be copied or reproduced in any form, in whole or in part, without the express permission of PooranLaw Professional Corporation.